AUSTIN (KXAN) — Keesha Hodges can’t help but smile when she remembers her son, Javone.

“He would always tell people, ‘My mom is my best friend.’ Like, all the time,” she said. “He’d call me: ‘Best friend, what are you doing?'”

She remembers him playing with his little brothers, acting like a “coach” as they worked out together, and how nervous he was the day he got his first tattoo.

“I’m like, ‘Oh my God, that’s so cool!’ He said, ‘That was scary, Mom, I’m not going to lie.’ He’s like, ‘A tear almost came out,” she said with a laugh.

Now, Keesha’s arms are decorated with the same images that her son had drawn; she “copied” his tattoos. She also added one of her own: his football number, surrounded by angel wings.

On a summer night in 2021, just a few months before 19-year-old Javone Montre Hodges was supposed to leave for Mesabi Range College in Minnesota on a football scholarship, he attended a party in south Austin. Austin Police investigators said an argument broke out, and Hodges was shot and killed.

A few days after the incident, the U.S. Marshals Lone Star Fugitive Task Force arrested another 19-year-old in Hodges death because several witnesses told police he was the one who fired shots at the party. Other witnesses said they saw the two young men arguing first.

More than a year later, however, no indictment of official charges had been brought against this suspect. Records show the Travis County District Attorney’s office “rejected” the case for prosecution in September 2022.

Through tears, Keesha said, “You know, my son has been gone for almost two years, and I cry every single day because I miss him. It is not right that this happened, and you know, there is still no justice for him.”

Not prosecuted?

Public safety and the criminal justice system in Texas’ capital city have been top of mind for people over the last few years.

Austin witnessed clashes between police and protesters in 2020 and an increase in violent crime in 2021. In the same time frame, two new leaders took over both the police department and the district attorney’s office.

At times, law enforcement and the county’s top prosecutor even feuded with each other, directly. Travis County District Attorney José Garza once claimed his office received reports of some Austin police officers declining to investigate crimes. Meanwhile, some of the most vocal critics of Travis County District Attorney Jose Garza included leaders of law enforcement unions, such as the Austin Police Association and the Combined Law Enforcement Associations of Texas, or CLEAT, who accused the county’s top prosecutor of politicizing cases and even of not prosecuting crimes.

That allegation has been echoed again in recent weeks by the state’s top prosecutor, Attorney General Ken Paxton, over arrests made following protests inside the state capitol building. Garza shot back immediately, saying Paxton’s statements were false.

KXAN investigators obtained and analyzed several years of data on dropped felony charges, finding an increase in the number of cases dismissed or rejected for prosecution in recent years by the Travis County District Attorney’s Office.

However, we discovered the way this data gets logged in Travis County, and statewide, can make it difficult to always know exactly why — or when in the process — cases were dropped.

According to the data from 2021 and 2022, the first two years of Garza’s term, his office dismissed or rejected around 12,700 felony charges. KXAN compared data from 2018 and 2019, a two-year period from the previous district attorney’s administration, when around 10,400 felony charges were dismissed or rejected.

KXAN sat down with Garza for two interviews over the course of analyzing the data.

In one of those conversations, Garza agreed that 2020 was a “statistical anomaly,” given that courts in Travis County shut down due to the outbreak of COVID-19 and prosecutors could not bring cases before grand juries for indictments.

However, he emphasized that his office continued to see the impacts of the pandemic through 2021 and even, in some ways, into 2022.

“I think it is important to remember that the Travis County criminal courts were among the last courts in the state of Texas to re-open,” he said. “There can be no doubt that it had a significant impact.”

He also explained his team has been working through a “backlog” of cases left behind by the prior administration, so he urged KXAN to analyze dismissals and rejections made within 12 months of receiving the case, as well.

In 2021 and 2022, his office declined to prosecute around 7,600 cases within 12 months of receiving it — which is almost 50% of all the cases it closed in that time frame. The technical term for those closed cases is “disposed.”

In 2018 and 2019, the previous district attorney Margaret Moore declined to prosecute around 7,100 charges within 12 months of receiving the case — 27% of cases closed over those two years.

Garza pointed out the actual numbers of dismissals and rejections stayed fairly consistent with years prior. He told KXAN that was true of conviction numbers, as well, even as his office received fewer cases from law enforcement to review.

Plus, he provided additional statistics during the interview, which showed the rate of convictions secured by his office for violent crimes, in particular, had skyrocketed since 2018 — from 38% to 91% compared to cases received. KXAN investigators have not yet been able to independently verify these rates.

“I think what that means is we have been far more focused and efficient in our ability to hold people accountable who commit acts of violence,” he said.

KXAN investigators pressed Garza about the more than 3,600 violent, sexual or weapons-related offenses dropped in 2021 and 2022 — which make up more than a quarter of overall dropped cases.

“These cases are our highest priority and I think that is reflected in the number of convictions that we are securing, and the percentage of cases that come through our door that are resulting in convictions,” he said.

He added, “If we cannot prove a case, we’re not going to hold on to it … We have an ethical obligation to dismiss it or reject it.”

Case dismissed, case rejected

In order for a felony case to proceed in Texas, prosecutors must convince a grand jury to indict a defendant based on evidence of probable cause — or rather, evidence that a person more than likely committed a crime.

In order to convict someone of a crime, a prosecutor must then convince a jury there is evidence beyond a reasonable doubt — a higher burden of proof.

Under Garza, every felony arrest goes through an early case review process, when his prosecutors are not only looking for probable cause, but also begin searching for evidence to prove the case beyond a reasonable doubt.  

If prosecutors do not believe they can prove these points, they could choose to “reject” the charge before an indictment or formal charges are ever brought. If his prosecutors obtain a grand jury indictment, but drop a case later on, Garza’s office classifies it as a “dismissal.”

Leadership in Garza’s office first explained this early case review policy back in 2021, when KXAN investigators performed an earlier analysis of dropped cases over the first six months of his term.

At the time, KXAN reported while dismissal numbers had risen slightly from the previous administration, rejection numbers made up a more significant percentage of dropped cases under Garza.

His office explained in August 2020, Travis County began coding rejections and dismissals differently, citing this change as one of the main reasons rejection numbers spiked in 2021. It also said the early case review policy allowed them to more efficiently evaluate cases.

“We had citizens sitting in jail on cases that — had we looked at them earlier — they would have been released earlier,” Efrain De La Fuente, an assistant district attorney, told KXAN in an interview in 2021.

According to the most recent data obtained by KXAN this year, rejections made up 56% of all felony charges dropped in 2021 and 2022. The rest, 44%, were dismissed later in the legal process.

Garza said the level of evidence available changes “dramatically” from arrest to prosecution.

“What our prosecutors see when a person is arrested is a probable cause affidavit. Typically, that is a document that is no more than two or three pages; it’s often one page; it’s often a paragraph. On that basis at early case review, they’re making a determination, an initial determination, as to whether or not there’s probable cause,” he said. “As the case moves past that point, our office begins to receive more evidence. We begin to receive body-worn camera [footage]. We begin to receive offense reports. We began to receive witness statements. So, our understanding of the facts changes as the case goes on.”

KXAN investigator Avery Travis asked, “if a case is rejected before that evidentiary process is given a chance to play out — particularly in these more complex, violent crimes — is that case getting a fair look?”

Garza explained every case is different.

“There are some cases that our office receives, for example, that are captured completely on video. There are some cases that our office receives for which there are no eyewitnesses at all,” he said. “And so, we assess the evidence at every stage and make determinations about how likely it is that the evidence will materialize — will come to be.”

He said his office communicates directly with law enforcement during this process with questions about evidence. KXAN asked the Austin Police Department for comment on this process and will update this story when we receive a response.

Garza said if a charge is dismissed or rejected and classified as “pending further investigation,” his office could reopen the case later when more evidence comes to light.

Data differences

The data appears to show only four rejections prior to 2020, when the pandemic began.

However, Moore and other top prosecutors from the previous administration explained for the majority of her term, they defined a rejection as an instance where her office declined to prosecute before law enforcement ever filed a complaint.

“They’ve got an allegation of criminal misconduct, they’ve done some investigation, they’ve taken statements, for instance, and they come to you and say, ‘We’d like you to take a look at this before we file anything,” she said. “They haven’t filled out a PC affidavit; they haven’t taken it to a magistrate; they have not filed the complaint. A rejection is when you say to them, we’re not going to take that — don’t file it.”

As such, it is difficult to compare her tenure to Garza’s and know exactly when, or how early, her administration was declining to prosecute cases.

The Texas Criminal Code requires all prosecutors in the state to report “rejected” charges to DPS, but it defines a rejection as “a charge that, after the arrest of the offender, the prosecutor declines to include in an information or present to a grand jury; or an information or indictment that, after the arrest of the offender, the prosecutor refuses to prosecute.”

Garza’s office said, under that definition, it reports all rejected cases to the state; meanwhile the Travis County District Clerk reports dismissed cases.

However, inconsistencies in the DPS rejection data indicate other counties and districts in Texas could be defining and reporting this data differently.

For example, numbers from Harris County — the largest in the state — show only three rejected cases from 2021 to 2022. The Office of Court Administration, which tracks court data across Texas, shows more than 30,000 dismissed cases from Harris County over those two years.

KXAN also reached out to Harris County and several other counties in Texas about rejection and dismissal data, and the DPS data, and will update this article when more details become available.

A prosecutor’s discretion

According to University of Texas School of Law professor Jennifer Laurin, prosecutors have “enormous discretion” over which cases proceed, and how, under criminal code in the United States.

She said there was no consensus among legal scholars about the impacts of early case review policies but noted the idea was not uniquely utilized by progressive prosecutors.

“We’ve seen, for example, in certain places in the country, examples of elected district attorneys who were known for being quite serious about the enterprise of prosecution who instituted early case review, right?” she said. “And it led to an uptick in rejections of cases — with an eye to improving the quality of the cases that were brought, with an eye to lowering rates of plea bargaining when problems in cases arose later, and with an eye to improving police work in the cases by sort of teaching law enforcement about what’s really necessary at the early stages of a case.”

In serious cases, she said prosecutors often have to overcome complicated legal and evidentiary hurdles to prove a crime has occurred — for example, a self-defense argument in a murder case. Additionally, she said factors such as witness cooperation could impact a prosecutor’s ability to make a case.

When evidentiary questions linger, she noted prosecutors also have to consider the best way to allocate the community’s, and taxpayers’, resources.  

“It is costly to have someone be detained pretrial. It’s costly to assign counsel to properly defend that case while it’s ongoing. It’s costly for the district attorney’s office to resource that case with investigators and lawyers,” she said.

Garza said, in Travis County, resources have been particularly strained due to an uptick in gun violence in 2021. While the rate of gun violence dropped in 2022, he said his office was still processing many of those cases.

“So, every day we have to make difficult choices about where we put our resources, what the status of the evidence is, what the state of the evidence is, and our ethical responsibilities,” he said.

When asked about how his office balances those concerns with the perception of prosecutorial bias, when a case is dropped before it goes before a grand jury for review, Garza responded, “Well, I think what I would say is that the prosecutors who work in the Travis County District Attorney’s Office — and there are about 100 of them — are, from my perspective, some of the finest prosecutors in the state of Texas.”

He went on to say, “They make decisions based on the facts, the evidence, and their professional experience and the rules of ethics that bind our profession. There is no bias in the work that they do.”

The data obtained by KXAN investigators lists different reasons Travis County prosecutors dismissed or rejected a charge over the years.

In 2021 and 2022, the top reason given for dismissals of violent, sexual or weapons-related offenses was “convicted in other cause.” Garza explained that often, as a part of a plea agreement, the defendant pleads guilty to another crime.

Other common reasons given for dismissals in this time frame were at the “request of the complaining witness,” meaning the victim in the case did not want to move forward; “completed pre-trial diversion,” meaning the defendant completed a supervised program as an alternative to prosecution; “pending further investigation” and in the “interest of justice.”

Meanwhile, the top reason for a rejected charge differed from dismissed charges, with prosecutorial discretion topping the list. Garza said reasons such as “interest of justice” and “prosecutorial discretion” could mean several different things.

“There are no uniform policies or guidance that we give prosecutors or staff as to how and when they should indicate a reason,” he said.

For prosecutorial discretion, he added, “We use that term to mean unable to prove the case. We use that term to mean there is a credible, affirmative defense that we can’t overcome.”

For interest of justice, he gave the example of a victim who suffered domestic violence and abuse for years, but who ultimately fought back and “ended the life of her tormentor.” He said in that case, they might drop the case “because we think it is the right thing to do.”

Interest of Justice

In the case of Hodges’ death, Garza said his office and law enforcement had “a very difficult time sorting through claims of self-defense — who was the first aggressor.” He also said they believed there were multiple firearms involved.

Ultimately, his office rejected the murder charges for the reason “interest of justice.”

For Keesha Hodges, it leaves questions unanswered.  

“This doesn’t make any sense to me. I said, ‘This is my son. This is my son — you’re not understanding this. If this was your child, you would not want to hear ‘a lack of evidence.'”

She said she followed the case closely, and the district attorney’s office confirmed she even brought a few leads to them for investigation.

“I have to be the voice for him,” she said.

Hodges told KXAN she was frustrated to see the suspect in her son’s case facing new criminal charges. He was arrested earlier this year in a separate case, on suspicion of three misdemeanors — including unlawful carrying of a weapon.

Garza explained his office cannot and would not, under the law, consider a person’s criminal history as evidence of whether they committed a crime. However, once a case has progressed, he said prosecutors will often evaluate “both their negative history and their positive history” when recommending sentencing outcomes.

“Although I know it is heartbreaking — and I am so sorry for that — at the end of the day, there simply was not enough evidence for our office to prove beyond a reasonable doubt that a crime was committed,” he said.

Digital Data Reporter Christopher Adams, Investigative Photojournalist Richie Bowes, Director of Investigations & Innovation Josh Hinkle, Investigative Producer Dalton Huey, Digital Executive Producer Andrew Schnitker and Digital Director Kate Winkle contributed to this report.